Amended 1893-40 Amended 1873-4. sumption or a new trial will be granted.-Grimes vs. papers 658. When the application is made for a cause on what mentioned in the fifth, sixth, and seventh subdivisions moved for. of the last section, it is made upon bills of exception on file; for any other cause it is made upon affidavit. If the application is made upon affidavits, the affidavits of the moving party must be filed with the Clerk and served upon the adverse party, within twenty-five days after the verdict or decision is made. The adverse party may file counter affidavits within five days thereafter, and, upon leave of the Court or Judge, the moving party may within five days file affidavits in rebuttal. NOTE.-The Court may exclude affidavits filed on a motion for a new trial, which are written in a foreign language.-Spencer vs. Doane, 23 Cal., p. 419. 659. The party intending to move for a new trial must, within thirty days after the decision or verdict, file with the Clerk and serve upon the adverse party a notice of his intention, designating therein generally the grounds upon which the motion will be made, and the time and place at which it will be brought on for hearing. The time designated must be not less than ten nor more than twenty days after service of the notice. NOTE.-1. NOTICE MUST BE IN WRITING.-Borland vs. Thornton, 12 Cal., p. 448. 2. MUST BE FILED.-Jenkins vs. Frink, 27 Cal., p. 337. 3. MUST BE SERVED.-Bear River & A. W. & M. Co. vs. Boles, 24 Cal., p. 354. Acknowledgment of service.-Towdy vs. Ellis, 22 Cal., p. 650. 4. TIME.-Ellsassar vs. Hunter, 26 Cal., p. 279; Garwood vs. Simpson, 8 Cal., p. 108; Duff vs. Fisher, 15 Cal., p. 380; Allen vs. Hill, 16 Cal., p. 113; Mahoney Notice of motion, served, and Auciated 1873-4. Anunded 1873. Motion to vs. Caperton, 15 Cal., p. 113; Crowther vs. Rowlandson, 27 Cal., p. 385; Casement vs. Ringgold, 28 Cal., p. 337; Genella vs. Relyea, 32 Cal., p. 159; Carpentier vs. Thurston, 30 Cal., p. 123; Peck vs. Curtiss, 31 Cal., p. 207; Gray vs. Palmer, 28 Cal., p. 416. 5. FIRST NOTICE CANNOT BE ABANDONED.-LeRoy vs. Rasette, 32 Cal., p. 171. 6. FILING AND SERVING NOTICE DOES NOT STAY PROCEEDINGS.-Crowther vs. Rowlandson, 27 Cal., p. 385; Ortman vs. Dixon, 9 Cal., p. 23; see, also, Lurvey vs. W., F. & Co., 4 Cal., p. 106. 660. At the time specified in the notice, or at such other time as the Court or Judge may adjourn dismissed. the hearing to, not exceeding ten days, the motion Judge to on decision motion. This statement must be heard. If the moving party fail to appear at either time it must be dismissed, and the case will stand as though no motion had ever been noticed or made. If heard by the Court or Judge, it must be decided within ten days after the hearing. 661. The Court or Judge deciding the motion must immediately thereafter file with the Clerk of the Court a statement in writing, under his hand, containing: 1. The name of the Court and title of the cause; 2. A reference to all pleadings, papers, bills of exception, and affidavits used on the motion; 3. A statement that the pleadings, etc., so referred to are made part of the statement; 4. The decision of the Court on the motion; 5. The grounds upon which the decision rests; decision is rendered excepts to the decision. And the statement so made and filed constitutes and has all the force and effect of a bill of exception to exception. the order granting or refusing the motion. NOTE.-Articles I and II of this Chapter are a substitute for the provisions of our old Practice Act relating to exceptions and motions for new trials. For all the statements and counter statements and compli cated machinery, there is substituted a simple practice by bills of exception. Under the old system, nearly one third of the time of sessions of the Supreme Court were devoted to hearing arguments addressed not to the merits of the case, but as to whether the merits were before the Court. We now have in our reports more decisions on points of practice, relative to that question, than can be found in the reports of the Supreme Court of the United States from its organization. By allowing an exception to be taken to the verdict or decision, we avoid, in eight cases out of ten, a resort to a motion for a new trial, and allow the question of sufficiency of the evidence to come directly to the Supreme Court as a question of law, as in criminal cases, thus leaving the motion for new trial, in most cases, but one office to perform-that of giving the Court below an opportunity to review its own decision. If the new trial is moved for, then the papers used at the hearing are, by the Judge, turned into a bill of exception, and constitute the only record on appeal from a decision granting or refusing the motion. The Judge must decide every cause submitted to him within twenty days after its submission. Notice of filing of findings is dispensed with, but the party knows that they must be filed within twenty days, and the only diligence he is put to is to inquire at the end of that time, for if the findings are filed the next day after the cause was submitted, he will still have left eleven days of his thirty in which to move for a new trial. Qwo Rections added. Amendmento 1873-4 CHAPTER VIII. THE MANNER OF GIVING AND ENTERING JUDGMENT. SECTION 664. Judgment to be entered in twenty-four hours, etc. 665. Case may be brought before the Court for argument. 666. When counter claim established exceeds plaintiff's demand. 667. In replevin, judgment to be in the alternative, and with damages. Gold coin or currency judgment. 668. Judgment book to be kept by the Clerk. 669. If a party die after verdict, judgment may be entered, but not to be a lien. 670. Judgment roll, what to constitute. 671. Judgment lien, when it begins and when it expires. 73-VOL. I. Judgment to be entered in twenty four hours, etc. Case may be brought SECTION 672. Docket, how kept, and what to contain. 673. Docket to be open for inspection without charge. 675. Satisfaction of a judgment, how made. 664. (§ 197.) When trial by jury has been had, judgment must be entered by the Clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the Court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. 665. (§ 198.) When the case is reserved for before the argument or further consideration, as mentioned in the last section, it may be brought by either party before the Court for argument. Court for argument. When counter claim established exceeds plaintiff's demand. In replevin, judgment to be in the alternative, and with damages. 666. (§ 199.) If a counter claim, established at the trial, exceed the plaintiff's demand, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. 667. ($200) In an action to recover the possėssion of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judg ment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. In an action on a contract or obligation in writing, for the direct payment of money, made payjudgment. able in a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency speci Gold coin or currency fied therein; and in all actions for the recovery of Same. NOTE.-1. ACTIONS TO RECOVER PERSONAL PROF- "The hay was taken in May, 1863, at which time |